I am at a loss to explain the behavior of the government attorneys in the Death penalty phase of the Zacharisis Moussaoui trial. Their behavior has, by their own admission, been atrocious. The Judge had it right when she said "This is the second significant error by the government affecting the constitutional rights of this defendant and, more importantly, the integrity of the criminal justice system in this country."
The first act was a mistake. Prosecutor Novak asked a question that suggested the defendant had a duty to correct his previous statements to authorities after his arrest and after he requested an attorney. This is just a wrong thing to do. The court however could probably fashion a strong jury admonition along the lines of "Not only did the defendant have no legal or moral obligation to correct any errors he may have made to interrogating officers after arrest and before a counsel request but counsel for the government has no right to even illicit testimony about any failure to do so. It can be acknowledged that Moussaoui did not speak to authorities again by virtue of advice given to him by his attorney." That instruction given to the jury would have negated the harm sufficiently to keep the jury as a group from using the post request silence from coming into the jury room. Jurors are not the same as witnesses however.
The Governments second blunder (which really is too nice a word for a purposeful act meant to impermissible affect the testimony of a witness)is far more egregious, and far less repairable. Yesterday it was learned that in directly disobeying the courts pretrial order not to coach the witnesses, the government attorneys have tampered with witnesses, putting the entire case in jeopardy.
I am at a loss as to what to do, if in fact the witnesses are as tainted as they seem to be by reports of the governments attorneys. If the court dismisses the death penalty and sentences the defendant to life without probation, it risks an appeal and it denies the victims of 9-11 their only day to face Moussaoui. If she doesn't find a way to negate the tainted witnesses, she losses the control of her courtroom. Her admonitions mean nothing and worse yet, it will make our system of justice a sham. Instead of a justice system, we become a "just us" system, not fair, without integrity.
I am just unsure how the judge can be sure the testimony the jury might get from these witnesses will be the same as that which she would have gotten had they not been coached.
The immediate cause of this self made disaster is the FAA liasion attorney who clearly overstepped her bounds. She is not a prosecutor but is part of the "team." However, the witnesses themselves are also to blame. They knew their obligations and should have not participated in the attorney's attempt to coach them.
If the hearing on the issue bears out the defendant's position on this thing, then at the very least the government needs to have its witnesses barred from testifying. I would go further however. I would also deny the prosecution the right to cross-examine any of the four prosecution coached defense witnesses on stipulated issues. I would also instuct the jury that the prosecution team coached the witnesses before they testified, in direct defiance of a court order against both sides. I would tell the jury it could infer that the witnesses, had they not been coached, would have given testimony harmful to the prosecution's case. I would also file a grievance against the attorney on the prosecution team that committed the most heinous act of a trial team member since Chris Dardin asked OJ Simpson to try on the glove worn by the murderer of his wife only to find it didn't fit Simpson.
I guess the two things I would not do at this point, is grant a mistrial or take the penalty off the table.
Although I am not a proponent of the death penalty, I could impose one if as a jurist I felt the procedure was fair and just. If we are going to have a death penalty, we have got to preserve the rights of the accused. But this is about more than just this case. This is also about following the rulings of the court.
There is a trial technique wherein the proponent of evidence that is not going to be allowed into the trial will try to introduce it so that the jury can hear it. It is an overused technique, but the rules allow for it as the jury is told not to consider the question only the answer. If the question gets answered and then the objection to it is sustained, the jury must disregard both the question and the answer. When the tactic is deployed, it is usually worth trying to get the evidence in and hope that either it doesn't draw the objection, or that if it is objected to, at least the jury saw you try to get it in.
That tactic though, is a fair (if hardball) part of the game. However coaching a witness using the testimony of other witnesses, especially after a specific warning not to, is just plain out cheating. It not only implicates the rights of the specific accused but also taints the entire procedure in every case. How can any juror believe a government attorney when they say their witnesses have not been coached in the future?
I can hear proponents of killing Moussaoui moaning that we are putting form over substance, that the penalty we are giving the prosecution is far more than Moussaoui deserves. That he had far less concern about killing Americans than America has had about killing him. To those people I say that if our procedures in taking the life of the guilty are not trustworthy, we become no better than the killer. We become murders ourselves. You have to have standards and live up to them or else you are no better than the barbarian. For those who seek vengeance for vengeance sake, I guess that is fine. For those of us for whom life is sacred and the power of the state, something to fear, that is far from enough. As I said, taking the death penalty off the table, is an option, but one that opens a good judge up to criticism. If she doesn't do enough however, she will forever forfeit the control of her courtroom and the process becomes corrupted. That is far worse than sparing Moussaoui, far far worse.